Employment Verification: Pitfalls and Best Practices

Question: How much information should we provide when we receive calls to verify employment for a former employee? Should we just verify dates of employment? Title? Eligibility for rehire?

Answer: You are not required to provide information regarding a former employee when references are requested. Because of the risk of defamation claims, many employers have chosen to have policies in which only dates of employment and position are confirmed. Employers can encounter problems if the employee can prove that a statement was made with a reckless disregard for whether it was true or not true. In the employment setting, defamation claims primarily arise from the following two situations:

Discussing an employee’s alleged poor performance, misconduct, or reasons for termination beyond those who need to know.

Responses to reference checks.

You may avoid defamation claims if you acquire and apply a basic understanding of the law in this sensitive area and follow a few simple precautions. In regard to reference inquiries, that means limiting your reference checks responses to confirmation of dates of employment and positions held, and obtaining a signed release from an employee before releasing any salary history or other employment data.

You may also need to consider whether withholding information may put your organization at risk of negligent referral. Negligent referral in this context can be defined as the failure to disclose accurate information about a former employee that may have helped the new employer prevent an incident in the new workplace. If you are concerned with the potential of negligent referral, you should consult with legal counsel on whether information on a former employee should be disclosed.